ED Issues Interim Guidance on Campus Sexual Assault

The Department of Education has followed through on Secretary Betsy DeVos’ announcement that it will revisit Title IX campus sexual assault guidance by both formally rescinding previous guidance issued by the Obama administration and offering new interim guidance as a placeholder until ED undergoes a rulemaking process to craft new, permanent regulations.

There are several notable changes in the interim guidance, including: 

• Adding the option for campuses to create an appeals process for sexual assault misconduct determinations.
• Adding the ability for campuses to use informal resolution methods such as mediation when appropriate.
• Rescinding previous guidance that a “typical investigation” should take about 60 days with a “no fixed time frame” standard.
• Perhaps most notably, adding the option for institutions to apply either a preponderance of evidence or a clear and convincing evidence standard when making determinations about alleged misconduct as long as the chosen standard is the same as the standard applied to allegations of other types of misconduct. 

While the new guidance offers some additional flexibility for campuses, the general consensus among the higher education community seems to be that it will do little to alter how institutions currently handle campus sexual assault. Since many institutions already meet the base requirements spelled out in the guidance, it’s likely that most schools will wait until the new formal regulations are enacted before making significant changes to their policies and procedures.

The rulemaking process can take anywhere from six to 18 months or longer, so it’s likely that any new campus sexual assault regulation will not be applicable until at least the 2018-19 academic year.